SH and MH were the parents of a young girl M. She died. They failed to provide the necessaries of life and were convicted of manslaughter. During the trial an order prohibiting the publication of the names of and any other information that would tend to identify M’s surviving siblings, was granted. That order included the surname H, which was a rather uncommon name.
In seeking the initial publication ban the Crown argued that the stigma of the parents’ conviction would follow the surviving children for the rest of their lives.
The Toronto Star applied to vary or set aside a publication ban. The Crown consented that the order could be narrowed to prohibit only the names of the surviving siblings and allow for the publication of the names of the victim and the offenders.
The Court appointed amicus curiae, Justice for Children and Youth, in order to make submissions in support of the original broad ban: 2015 CarswellOnt 821 (SC)
In support of the application amicus filed an affidavit highlighting the uniqueness of the family surname.
The Toronto Star in turn filed an affidavit, which cited examples of six reported cases in Toronto newspapers where the names of parents convicted in the deaths of their children were published but the names of surviving siblings were not. In some of those cases the surnames were rather uncommon.
Sproat J first considered the applicable legal framework under the Dagenais-Mentuck test.
Turning to the first step of the test Sproat J considered whether the publication ban is necessary to prevent a serious risk to the proper administration of justice or the protection of a public interest @para 19.
The Court accepted that both provincial and federal legislation provides for the restriction of publication of the names of those under 18. For example the Child and Family Services Act prohibits naming those involved in child protection proceedings. Similarly the Code prohibits naming young persons who are charged with or victims of Criminal Code offences.
It was also accepted by the court that the surviving siblings in this case met the definition of victims and would “fall within the class of persons entitled to provide a victim impact statement at a sentencing hearing.” @para 21
In assessing whether the public interest could only be addresses by a publication ban:
the reality is that the surviving siblings have suffered the death of their sibling and are now, or will become, aware that both their parents were criminally responsible for the death. A significant number of people must already know the identities of all concerned. This no doubt includes some family, friends, neighbours, teachers and health care professionals. The death of a sister, particularly given the culpability of the parents, will no doubt cause "dreadfully painful times" for the surviving siblings. That is the baseline. Nothing a publication ban can do will change that. @para 23
Thus, the Court concluded at the first stage that the publication ban was not necessary to prevent a serious risk to public harm. Notwithstanding this finding the Court went on to consider the second stage of the test.
At the second stage of the test the Court considered the effect of this type of litigation based on how common and uncommon a name is would be:
fertile ground for experts and litigation over just how common or uncommon a surname is; over what geographic area names should be compared; and to what extent should similar sounding but differently spelled surnames be considered. As a practical matter litigating publication bans, particularly if experts are required, will tend to mean that the affluent are much more likely to be able to shelter under publication bans. @para 40
Taking an approach that would be minimally impairing on the open court principle the Court noted that the public would have a significant interest in the names of convicted offenders, particularly those guilty of homicide. In contrast, citizens would have a minimal interest in the name of a victim. @para 41.
As such the Court accepted what was effectively the joint submission of Crown and media for the narrowed publication ban where the names of the surviving siblings would remain protected.